Unveiling the Canvas: Tackling the Issue of Counterfeit Indigenous Art in Canada

Art has always been a profound expression of culture, history, and identity. In Canada, Indigenous art stands as a vibrant testament to the rich heritage and diverse traditions of Indigenous peoples. However, amidst the celebration of this cultural wealth, a troubling issue looms large – the prevalence of counterfeit Indigenous art.

Indigenous artists are not only having their creations stolen, but buyers of Indigenous art in Canada often cannot tell, or do not know to research whether, a piece may be fake or produced without an artist's permission. In this article, we delve into the complexities of this issue and explore potential solutions to safeguard Indigenous artistic heritage within the Canadian context.

Fake Indigenous Art & Norval Morrisseau

The industry of fake Indigenous art ranges from designs copied onto apparel and home décor, to carved mask and totem poles, often reproduced in Asia and Eastern Europe, and sold cheaply in Canada. The industry also includes massive fraudulent art rings. Notably, in Canada, eight individuals are facing a total of 40 charges following a nearly 4-year long police investigation into the forgery of artworks by Anishinaabe artist Norval Morrisseau. Morrisseau, who passed away in 2007, was an influential Indigenous Canadian artist, widely regarded as the founder of the Woodlands School of art and a prominent figure in contemporary Indigenous art. Morrisseau was of Anishinaabe (Ojibwe) descent and was also known by his Anishinaabe name, Copper Thunderbird.

The investigation revealed a sophisticated operation producing counterfeit Morrisseau paintings. Due to the case's complexity and scope, the Ontario Provincial Police were brought in to assist. The investigation uncovered that these fraudulent artworks had been sold to unsuspecting buyers, undermining the authenticity and value of Morrisseau's genuine works. This operation deceived experienced art collectors and damaged the market for Morrisseau’s authentic works. This fraud scheme also involved producing fake certificates of authenticity [1].

Law enforcement's thorough investigation underscores the grave nature of art fraud and its significant impact on the art community. The spread of counterfeit Indigenous artworks not only misleads collectors but also damages Morrisseau's and other impacted artists’ legacies and the cultural heritage they embody. This case emphasizes the importance of vigilance and authenticity verification in the art market, ensuring that artists' legacies and the cultural significance of their work are preserved and respected.

Orange Shirt Day

In addition to sophisticated and calculated schemes like the one mentioned above, counterfeit and unauthorized operations are also infiltrating smaller communities and Indigenous initiatives. The counterfeiting of the commemorative Every Child Matters Orange Shirt Day t-shirt designs is an apt example of the way non-Indigenous people and businesses profit from Indigenous artists’ designs. Each design carries deep symbolism, representing the legacy of Indigenous children who suffered in residential schools and the ongoing journey towards reconciliation. Well-intentioned buyers trying to support the Orange Shirt movement be unwittingly deceived into purchasing merchandise containing designs reproduced without the consent of the artists. Many of these sales – some of them by online businesses located overseas – are for a profit, rather than to support Indigenous organizations and people, including the artists themselves. 

This exploitation is just the latest iteration of this pervasive issue. Canadian tourist shops are awash with fake Indigenous arts and crafts. An investigation by Discourse writer Francesca Fionda in 2019 revealed that the majority of Vancouver’s tourist shops were peddling what appeared to be knock-off Indigenous arts and crafts[2]. The investigation concluded that only 25 per cent of the stores sampled in Vancouver exclusively sold authentic items confirmed to be produced by or in collaboration with Indigenous artists, who were credited and compensated for their work. Knock-offs are made by non-Indigenous individuals and businesses who have taken on Indigenous identities and aesthetics – “pretendians”.

While souvenir shops are on the lower end of the art spectrum, inauthentic Indigenous art has made its way into private collections, art galleries, and even museums in Canada. In 2021, an art dealer in British Columbia admitted to misleading the public and knowingly selling artwork made by an artist whose Indigenous identity was fabricated[3]. These challenges in British Columbia are mirrored in other Canadian jurisdictions and in other parts of the world. 

Impact and Consequences

Counterfeit Indigenous art has a detrimental impact on Indigenous artists and communities. After colonisation, Indigenous people were prohibited from engaging in many aspects of their respective cultures and practices.  Further, systemic racism/inequalities have led to Indigenous people being disproportionately represented below, on, or near the poverty line. Authentic Indigenous art represents a source of income and empowerment for many Indigenous creators. The value of Indigenous art sold in Vancouver alone is estimated to be $100 million. The number of people relying on the sale of this art for a living is estimated to be 1,600[4]. By flooding the market with imitation products, counterfeiters not only devalue the work of genuine artists trying to make a living, but also exploit Indigenous cultural heritage for profit. This exploitation perpetuates systemic inequalities and further marginalizes Indigenous voices in the art world.

Counterfeit Indigenous art perpetuates harmful stereotypes and misconceptions about Indigenous culture, stripping away the nuance and authenticity of Indigenous artistic expression. The global market for fake Indigenous art has made it increasingly difficult for Indigenous artists to sustain themselves through their work. For these artists, it represents not just financial harm but also cultural theft. Authentic Indigenous art serves as a means of storytelling, preserving traditions, and connecting with ancestral roots for Indigenous communities across Canada. According to a 1997 study, 81% of Indigenous artisans had experienced some form of misappropriation or use of traditional Indigenous designs[5]. This misrepresentation not only distorts public perceptions, but also perpetuates cultural appropriation and erasure.

To have non-indigenous people profit off of Indigenous culture when Indigenous people were prohibited from engaging in their own cultural practices is deeply concerning.

Strategic Interventions

Addressing the issue of counterfeit Indigenous art, and the misappropriation of Indigenous culture for profit, requires a multifaceted approach that prioritizes collaboration, education, and accountability. 

Given the intangible nature of Indigenous cultural heritage, it seems natural to seek protection through existing intellectual property laws. Indeed, Indigenous-led initiatives have been met with some success. The “Igloo Tag” and the “Genuine Cowichan Approved” certification marks are examples of marks developed to help Indigenous artists promote their authentic works and distinguish them from counterfeit goods.  

Despite these successes, due to the fundamental differences between the underlying philosophy of intellectual property laws and Indigenous ethics in respect of cultural heritage, not all components of cultural heritage can be protected by these laws. Take Canadian copyright law – the protected work is the fixed expression of an idea, not the ideas, styles, or themes contained in it. As such, non-Indigenous artists are free to appropriate Indigenous ideas, legends, symbols, or artistic styles, and use them in a fashion that is contrary to the strict protocols of the Indigenous community of origin. Though this is one small example of the inherent issues as it relates to IP laws, this is precisely what Indigenous artists seek to prevent. 

There is a need for enhanced legal frameworks and enforcement mechanisms to combat the production and sale of counterfeit Indigenous art. Strengthening or supplementing intellectual property laws and implementing stricter penalties for infringement can serve as deterrents to counterfeiters. Advocates often point to the U.S. Indian Arts and Crafts Act, which criminalizes misrepresenting Indigenous art, with hefty fines and jail time. There is also a hotline dedicated to reporting of fake Indigenous artworks. While such legislation has gaps, Canada could consider adopting something similar to address specific needs of Indigenous creators. 

Additionally, promoting ethical sourcing and transparent marketing practice can help consumers distinguish between authentic Indigenous art and counterfeit replicas. Educating the public about the cultural significance of Indigenous art and the importance of supporting Indigenous artists is crucial in fostering a more conscientious consumer culture. Helping buyers to understand to ask before purchase where the work came from, whether it was made with permission of the artists, and whether the artist is being paid, is a critically important initiative. 

Emerging Technological Approaches

As technology continues to advance, researchers are exploring new methods for ensuring the authenticity of Indigenous works expressed through digital. One such method involves leveraging secondary technologies to address the limitations of traditional databases in recordkeeping. This approach not only enhances the management of records but can also be leveraged by artists to protect their intellectual property and creative works.

For instance, a digital certificate of authenticity can accompany a piece of artwork, embedding relevant metadata that provides verifiable evidence of its authenticity. This method enhances security and helps prevent fraud. In a similar vein, Lucinda Turner, the B.C. artist who worked to expose fraudulent Indigenous art before her passing in 2022, had previously proposed the creation of an Indigenous Artist Registry using blockchain technology. This registry would store an artist’s portfolio and biography on a blockchain, giving artists a platform to document their designs, control ownership, establish provenance, and track the sale of their works [6].

Blockchain technology offers a promising solution for safeguarding against counterfeit Indigenous art by creating a secure, immutable record of provenance and ownership. Using blockchain’s decentralized ledger system, each piece of art can be assigned a unique digital certificate that tracks its origin, ownership history, and authenticity throughout its lifecycle. This transparent record reduces the risk of fraud by allowing stakeholders—including artists, collectors, and institutions—to verify the authenticity and provenance of artworks with a high degree of confidence. Moreover, blockchain technology enables more robust and tamper-proof authentication processes, making it easier to detect any changes or discrepancies in the record. By integrating blockchain into the art market, the risk of counterfeiting can be significantly reduced, ensuring that Indigenous art is protected and its true value accurately represented.

The Role of Border Protection

According to the Canadian Border Services Agency (CBSA), there are currently no import restrictions related to items that imitate Indigenous art. Advocates have called upon the federal government to put costly duties on items with Indigenous designs coming into the country. They hope that this would force sellers to increase prices and, ultimately, curtail the sale of these often-cheaper inauthentic items [7].

Border checks for art in Indigenous styles could also be a positive step, as unauthorized and counterfeit Indigenous works, including reproductions of First Nations art on T-shirts, bedspreads, plastic bowls, and bags, as well as carved masks and totem poles made from wood, are often sourced in Southeast Asia and shipped to Canada [8]. By way of clarity, CBSA’s Request for Assistance (RFA) program is designed to assist with detection and detention of suspect counterfeit and pirated goods at the border, and empower rights holders to take action against importers of such goods. To enroll, rights holders must file an application with CBSA that identifies the copyrights, or registered trademarks or geographical indications of concern (which list can be updated as new rights arise). The program has been in place since 2015. There is currently no government fee to apply. 

Since the implementation of the RFA program in 2015, more than 500 Rights Holders have enrolled, and 313 are currently enrolled.  Over 6,000 trademarks and 340 copyrights are now recorded in the RFA program.  To date, just over 2,600 shipments have been detained in Canada, in comparison to the tens of thousands of shipments detained annually in the United States and the European Union. The RFA program remains a vital tool for rights holders. It provides an opportunity for enhanced brick and mortar and online enforcement.  However, counterfeiters and pirates are continuously implementing new ways to conceal goods on import in an effort to evade detection and there is currently a lack of dedicated training and efforts made by border agents with respect to counterfeiting of consumer products. There is a need for more officers on the ground, whether from existing staff or additional staff, dedicated to dealing with the issue of detaining counterfeit shipments at ports of entry which could directly assist in an increase the number of detentions. While this is a general objective, these types of improvements and more detailed and dedicated checks at the border would surely assist in the investigations of the provenance and destination of art and related goods that feature said art in Canadian Indigenous styles.  

CONCLUSION

The issue of counterfeit Indigenous art in Canada is a complex and multifaceted challenge that demands collective action and commitment. Fostering meaningful partnerships between Indigenous artists, communities, and the broader art industry can promote ethical collaboration and mutual respect. By centering Indigenous voices and perspectives in discussions about art and cultural representation, we can create a more inclusive and equitable artistic landscape that honors Indigenous knowledge and creativity. By addressing the root causes of this issue, and prioritizing Indigenous rights and representation, we can work towards a future where Indigenous art is celebrated, preserved, and respected in its truest form for generations to come.

Footnotes

• [1] 8 charged over 1,000 paintings seized in Norval Morrisseau art fraud investigation. Kris Ketonen · CBC News https://cbc.ca/news/canada/thunder-bay/norval-morrisseau-forgery-1.6766990
• [2] Fake Indigenous art is a real problem in Vancouver stores, May 22, 2019,  Francesca Fionda. https://thediscourse.ca/urban-nation/fake-art-investigation
• [3]Major museum and art gallery shops duped by fake Indigenous carver, July 26, 2021, Bethany Lindsay. https://www.cbc.ca/news/canada/british-columbia/bc-fake-indigenous-artist-harvey-john-1.6114608
• [4] Beyond the Mask and Totem Pole, Kevin Griffen, Vancouver Sun (October 9, 2010)
• [5] The Appropriation of Aboriginal Cultural Heritage: Examining the Uses and Pitfalls of the Canadian Intellectual Property Regime https://www.sfu.ca/ipinch/outputs/blog/canadian-intellectual-property-regime.
• [6] Indigenous Canadian artists pressure government to curtail sales of counterfeit First Nations art. July 14, 2022, Claire Voon. https://www.theartnewspaper.com/2022/07/14/indigenous-artists-canada-demand-regulation-counterfeit-first-nations-art
• [7]   The Appropriation of Aboriginal Cultural Heritage: Examining the Uses and Pitfalls of the Canadian Intellectual Property Regimei, November 19, 2015, Vanessa Udy. https://www.sfu.ca/ipinch/outputs/blog/canadian-intellectual-property-regime.
• [8] Feds urged to crack down on fake Indigenous art, copyright breaches, July 7, 2022, Marie Woolf. https://www.cbc.ca/news/politics/indigenous-art-fake-copyright-1.6513245